The marital home is frequently the largest asset between the parties to be divided in a divorce. When and how the marital home was acquired will be a major factor in determining who gets the marital home temporarily and permanently.

What is Exclusive Use and Possession?

Exclusive use and possession refers to one party receiving permission to use the home for their own purposes. Conditions are frequently provided for, as well. A frequent condition to receiving exclusive use and possession of a home is typically connected with paying the mortgage or other household bills.  This sometimes occurs initially after holding a temporary needs hearing or a domestic violence injunction hearing.  The most expedient, but not necessarily recommended way that a spouse can obtain exclusive use and possession of a home is through a domestic violence case. Using a domestic violence case to obtain exclusive use and possession should only be pursued when it involves a Petitioner that has been the victim of domestic violence. In other words, a petition for injunction should only be filed when actually necessary to stop or prevent violence. Where domestic violence is not an issue, a temporary needs hearing would be the best vehicle to obtain a temporary order to decide who stays in the home temporarily. The author has seen a number of occasions where both parties shared the home while they waited for a final hearing because neither party had a good option to leave.  This is not recommended, as it is natural for hostility to build between two partis going through a divorce.

Where violence between the parties does not exist, a temporary needs motion can be filed to allow the divorce judge or Magistrate to decide the issue on a temporary basis. A hearing before a Magistrate is sometimes more expedient. However, there are other complications when a Magistrate hears the issue that relate to a 10 day period wherein a Magistrate’s decision and proposed order cannot be sent to the Circuit Judge for entry.

Who Receives the Equity in the Home?

As to who receives the home, this depends on a number of factors. If the home was the separate property of either spouse prior to the marriage, that spouse retains ownership, assuming he did not transfer the ownership during the marriage. The owner does not automatically receive exclusive use and possession of the property. If the home was used as a marital home, the non-owner spouse may still receive exclusive use and possession of the home for some period of time if there are minor children of the marriage and the non-owner spouse is the primary residential parent. One example the author has encountered in his practice involved the Mother being permitted to raise the minor children in the marital home and when the youngest child turned 18, the home was required to be sold and the equity split between the parties. There can be numerous variations to this arrangement depending on whether or not there is a mortgage and depending upon the financial position of the parties. Family Law Judges are given a significant amount of discretion in deciding these issues.
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About the author
Neil Weinreb is a licensed Florida attorney who has been practicing law for over 17 years in North Florida. Mr. Weinreb received the highest possible rating from Martindale Hubbell, AV Pre-eminent. Mr. Weinreb works for the Law Office of David M. Goldman in Jacksonville, Florida and regularly handles divorce issues. Mr. Weinreb has worked as an adjunct professor teaching law to paralegal students at Jones College in Jacksonville, Florida. You can contact Mr. Weinreb at the Law Office of David M. Goldman for a free initial consultation. An important case that Mr. Weinreb successfully appealed in 2017 was, Sencoa Crawford v. State of Florida in which Florida’s First District Court of Appeals found that hearing officers did not have the authority to order arrests of Obligors. Crawford v. Department of Revenue, 219 So. 3d 224 (1st DCA 2017).